The American legal system has always struggled with the concept of privacy. Although the US Constitution never uses the word “privacy,” it guarantees Americans the right to go about the business of their lives without fear of government scrutiny—until, that is, a judge allows law enforcement to search a home, listen to a phone call, or take other intrusive steps to ensure public safety.
The guidelines are clear—or, more accurately, they used to be clear. Recent advances in technology have opened up a new debate about what privacy really means and how much leeway law enforcement can exercise in its ongoing mission to protect public safety.
At the center of the debate is CALEA, the Communications Assistance for Law Enforcement Act of 1994. In the 1990s, Congress began to realize that existing wiretap procedures and policies were inadequate for newly developing technology. Congress responded by passing CALEA, which required communications carriers and manufacturers to install surveillance capability into their equipment. If a customer was behaving suspiciously, and an agency obtained a court order, law enforcement could monitor even the most sophisticated forms of electronic communication.
But the experts who drafted CALEA did not foresee the advanced technology built into today’s smartphones, which are not required to carry surveillance capability. Court orders are meaningless: Apple and Google officials shrug their shoulders and say there’s no way to listen in on their products.
On October 16, FBI Director James B. Comey spoke about the need for expanded surveillance capability in a speech at the Brookings Institution in Washington DC. Comey’s position is that surveillance is vital to public safety and national security. Legal guidelines already in place have effectively protected citizens’ privacy for over two centuries. It’s past time, Comey says, to require manufacturers to expand the kinds of surveillance technology already found in conventional electronic devices. “Encryption threatens to lead all of us to a very dark place,” he warned. “Justice may be denied because of a locked phone or an encrypted hard drive.”
But smartphone manufacturers disagree—vehemently. One reason is profit: Their customers want guarantees that their privacy is protected. Fears about surveillance are especially prevalent overseas, where some governments routinely spy on their citizens—and 62 percent of Apple’s revenue comes from abroad. Not surprisingly, Apple uses its anti-surveillance feature as a strong selling point. “Unlike our competitors, Apple cannot bypass your passcode and therefore cannot access this data,” declares the Apple website. “So it’s not technically feasible for us to respond to government warrants.”
It’s not just foreigners who worry about government spying. Revelations from former U.S. National Security Agency contractor Edward Snowdon have made many Americans wonder whether they’ve been the victims of government data-collection practices.
How serious is law enforcement’s need for access to smartphone data and content? James B. Comey argues that the need is urgent, especially in light of fears about domestic and foreign terrorists—but other experts disagree.
Apple officials note, for example, that encryption is not new: It’s been available to customers since the 1990s through an app called Pretty Good Privacy (PGP). Ironically, crime rates in the US and across the globe began to drop at about the same time PGP was introduced. No one claims that PGP made all of us safer, but privacy advocates say it’s clear that encryption does not seriously hamper law enforcement.
And law enforcement has tools of its own for gathering data in legal ways. One is malware, an electronic feature that can be planted on a suspects’ smartphones to trick them into providing access to confidential content. Law enforcement also has access to wireless networks, which can be a source of enormously useful information. And encryption has its own fans in the law enforcement community, notes Adam Wandt, a professor and deputy chair at the John Jay College of Criminal Justice in New York. Police and court officials have long sought better security on their own devices, Wandt says.
While Americans are arguing about balancing their need for privacy with law enforcement’s need for information, an important deadline is looming. Beginning next June, several provisions of the Patriot Act will expire, including a requirement that phone companies hand over their customers’ records to the National Security Agency. Will Congress be able to extend those provisions?
There are already signs of diminishing support for the Patriot Act. Worries about government spying recently led to a proposed USA Freedom Act, which would have limited surveillance powers currently in use by the National Security Agency. In November the bill, which was supported by both the NRA and the ACLU, failed by just two votes in the US Senate—a sign of widespread fears about the erosion of privacy rights. As the debate rages on, law enforcement continues to watch…and worry.
To learn more:
www.complexevents.com/2014/11/20/apple-and-others-encrypt-phones-fueling-government-standoff/
https://www.yahoo.com/tech/well-encrypted-phones-on-vulnerable-cellular-networks-102917792869.html
www.androidcentral.com/smartphone-encryption-could-lead-death-child-government-fights-back
www.fbi.gov/news/speeches/going-dark-are-technology-privacy-and-public-safety-on-a-collision-course
en.wikipedia.org/wiki/Communications_Assistance_for_Law_Enforcement_Act
www.androidcentral.com/nsa-reform-bill-killed-us-senate
Jean Reynolds, Ph.D. is Professor Emeritus of English at Polk State College, where she taught report writing and communication skills in the criminal justice program. She is the author of ten books, including Police Talk (Pearson), and she publishes a Police Writer Newsletter. Visit her website at www.YourPoliceWrite.com for free report writing resources. Go to www.Amazon.com for a free preview of her book Criminal Justice Report Writing. Dr. Reynolds is the police report writing expert for Law Enforcement Today.